EXHIBIT 4(f)(40)
SECOND AMENDMENT TO INTERCREDITOR AGREEMENT
This SECOND AMENDMENT TO INTERCREDITOR AGREEMENT dated as of June 10, 2002
("Second Amendment") is entered into by and among (a) Comerica Bank
("Comerica"), acting in its capacity as agent (in such capacity, the "Agent")
for and on behalf of the various financial institutions which are, or may from
time to time hereafter become, parties to the Credit Agreement, (b) the
undersigned Lenders (including Comerica in its individual capacity), and (c)
Comerica, in its capacity as collateral agent hereunder (together with its
successors and assigns, the "Collateral Agent"), and is acknowledged by Credit
Acceptance Corporation, a Michigan corporation ("Company") as issuer of the
Benefited Obligations.
RECITALS
A. Agent, Collateral Agent, each of the undersigned Lenders (or their
predecessors), and certain Noteholders entered into that certain Intercreditor
Agreement dated as of December 15, 1998 which was acknowledged by the Company as
of such date and which was amended by the parties by First Amendment ("First
Amendment") dated as of March 30, 2001 (as so amended, the "Intercreditor
Agreement").
B. Subsequent to the First Amendment, the Senior Debt (as defined in the
Intercreditor Agreement) was paid and discharged in full by the Company.
C. At the request of the Company, and in connection with certain amendments
to be made to the Credit Agreement concurrently with this Second Amendment, the
undersigned parties have agreed to amend the terms and conditions of the
Intercreditor Agreement, but only as set forth herein.
NOW, THEREFORE, the parties have entered into this Second Amendment to
make further amendments to the Intercreditor Agreement, as follows:
1. The following definitions contained in Section 1 of the Intercreditor
Agreement are amended and restated in their entirety, as follows [CHANGES SHOWN
IN BOLD ITALICS]:
"Future Debt" means Debt, if any, incurred by the Company as "Future
Debt" pursuant to the requirements and limitations applicable thereto
under the Credit Agreement (without giving effect to any amendments to
such requirements and limitations after the incurrence of any Future
Debt, except to the extent approved by the Required Future Debt
Holders) which is secured or to be secured by a Lien on the
Collateral, as so designated by the Company in a writing delivered to
and acknowledged by the Collateral Agent pursuant to Section 7(a)
hereof, but shall not include any other Debt.
"Future Debt Documents" means the promissory note(s), agreement(s) and
other documents, instruments and certificates, if any, executed and
delivered, subject to the terms of this Agreement, to evidence or
secure or otherwise relating to Future Debt, as amended, restated or
otherwise modified from time to time, and any
replacement, refinancing or restructuring of any such promissory note,
agreement or other document, instrument or certificate, provided that
any successor Future Debt Holder, or any agent acting on behalf of all
such successor Future Debt Holders, has executed an acknowledgement to
this Agreement substantially in the form of Exhibit B-1.
"Future Debt Holders" means each Person, if any, which is, at the date
of determination, the holder of Future Debt.
"Permitted Securitization" means any "Permitted Securitization" under
the Credit Agreement and the Future Debt Documents.
"Security Agreement" means that certain Second Amended and Restated
Security Agreement executed and delivered by the Company and certain
of its Subsidiaries, as debtors and Grantors, in favor of the
Collateral Agent, for and, on behalf of the holders of the Benefited
Obligations, as such agreement may be amended, restated or otherwise
modified from time to time.
"Security Documents" means this Agreement, the Security Agreement, and
the Share Charge, and shall include any other agreements or
instruments which provide security with respect to any Benefited
Obligation which are executed and delivered after the date hereof.
"Share Charge" means each share charge, pledge, assignation or other
document or instrument encumbering, for the benefit of the holders of
the Benefited Obligations, the share capital, partnership interests or
other equity or ownership interests of the Company or its Subsidiaries
in a Subsidiary established under the laws of a jurisdiction other
than the United States of America, or any state, territory or district
thereof, whether such document or instrument is presently in effect or
is executed and delivered after the date hereof, as each such document
or instrument may be amended, restated or otherwise modified from time
to time, and all such documents and instruments collectively.
"Significant Domestic Subsidiary" means any "Significant Domestic
Subsidiary" under the Credit Agreement or the Future Debt Documents.
2. Section 7(b) of the Intercreditor Agreement is amended and restated, in
its entirety, as follows [CHANGES SHOWN IN BOLD ITALICS]:
"(b) Upon the acquisition or creation of any Subsidiary that
constitutes a Significant Domestic Subsidiary or otherwise when
required under the applicable terms of any Financing Agreement, (i)
the Company shall execute, and cause such Subsidiary to execute, and
deliver to the Collateral Agent and each Benefited Party the Security
Documents to the extent required by the Credit Agreement and/or the
applicable provisions of the Note Agreements or any Future Debt
Documents and (ii) the Company shall cause such newly acquired or
created Subsidiary (and any other Subsidiary required to deliver a
stock pledge under the applicable terms of the Security Agreement, any
Share Charge or any other
Security Agreement or Financing Agreement) to execute and deliver to
the Collateral Agent an acknowledgment substantially in the form of
Exhibit B-2 attached to this Agreement, by which such Subsidiary
agrees to be bound by the terms of this Agreement. Each such
acknowledgment shall also be signed by the Company and the Collateral
Agent."
3. Sections 11(o) and 11(p) of the Intercreditor Agreement are hereby
deleted in their entirety.
4. Except to the extent otherwise defined herein, all capitalized terms
used in this Amendment shall have their respective meanings as set forth in the
Intercreditor Agreement.
5. Agent, Collateral Agent, the Lenders, and Company hereby acknowledge
that, subject to the terms hereof, the Intercreditor Agreement is and shall
remain in full force and effect according to its terms.
6. This Amendment may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
* * *
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to
be duly executed and delivered as of the date first above written.
COMERICA BANK,
as Agent and as Collateral Agent
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Its: Assistant Vice President
-----------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO INTERCREDITOR AGREEMENT]
ACKNOWLEDGED BY:
CREDIT ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Its: Chief Financial Officer
------------------------------------
Date: June 10, 2002
AUTO FUNDING AMERICA OF NEVADA INC.
CREDIT ACCEPTANCE CORPORATION
LIFE INSURANCE COMPANY
BUYERS VEHICLE PROTECTION PLAN, INC.
CAC LEASING, INC.
VEHICLE REMARKETING SERVICES, INC.
CREDIT ACCEPTANCE CORPORATION OF
NEVADA, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: Chief Financial Officer
----------------------------------
Address for Notices:
c/o Credit Acceptance Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxx Xxxxxx
[SIGNATURE PAGE TO SECOND AMENDMENT TO INTERCREDITOR AGREEMENT]
BANKS:
COMERICA BANK BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
By: /s/ Xxxxxx X. Xxxxxx
Its: Assistant Vice President ------------------------------------
-------------------------------
Its: Principal
-----------------------------------
LASALLE BANK NATIONAL
ASSOCIATION
NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Its: Assistant Vice President By: /s/ Xxxxx X. Light
------------------------------- ------------------------------------
Its: Vice President
-----------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Its: Vice President
-------------------------------
FIFTH THIRD BANK (EASTERN MICHIGAN)
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Its: Vice President
-------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO INTERCREDITOR AGREEMENT]
EXHIBIT 4(f)(41)
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
This Second Amendment dated as of June 10, 2002, by and between Credit
Acceptance Corporation, a Michigan corporation (the "Company"), the Subsidiaries
of the Company from time to time parties hereto (collectively, with the Company,
and either or any of them, the "Debtors" and individually, each a "Debtor") and
Comerica Bank, a Michigan banking corporation ("Comerica"), as agent (in such
capacity, the "Collateral Agent") for the benefit of the "Lenders", the
"Noteholders" and the "Future Debt Holders" (each as referred to in the Security
Agreement, defined below).
RECITALS:
A. Pursuant to the Credit Agreement, the Senior Debt Documents and the
Intercreditor Agreement (each as defined in the Security Agreement), Debtors
executed and delivered to the Collateral Agent that certain Second Amended and
Restated Security Agreement dated as of June 11, 2001.
B. Debtors and the Collateral Agent entered into that certain First
Amendment to Second Amended and Restated Security Agreement ("First Amendment")
dated as of September 7, 2001, amending the Security Agreement referred to in
Recital A on the terms set forth therein (such Security Agreement, as amended by
the First Amendment, the "Security Agreement").
C. Subsequent to the First Amendment, the Senior Debt (as defined in the
Intercreditor Agreement) was paid and discharged in full by the Company.
D. Debtors and the Collateral Agent, with the concurrence of the Banks (as
defined in the Intercreditor Agreement), desire to amend the Security Agreement
as set forth below.
NOW THEREFORE, the parties agree as follows:
1. Section 1.1 of the Security Agreement is amended, as follows:
(a) The following new definitions are added to Section 1.1, and inserted in
appropriate alphabetical order:
"CAC South Dakota" means Credit Acceptance Corporation of South Dakota,
Inc.
"CAC Reinsurance" means CAC Reinsurance Limited.
"Program Agreements" shall mean the "Program Agreements" under each of the
Credit Agreement and the applicable Future Debt Documents.
"Program Contracts" shall mean the "Program Contracts" under each of the
Credit Agreement and the applicable Future Debt Documents.
"Program Participants" shall mean the "Program Participants" under each of
the Credit Agreement and the applicable Future Debt Documents.
"Program Transfers" shall mean the "Program Transfers" under each of the
Credit Agreement and the applicable Future Debt Documents.
"Stapled Stock Restructuring" shall mean the "Stapled Stock Restructuring"
under each of the Credit Agreement and the applicable Future Debt Documents.
"T & C Subsidiary" shall mean the "T & C Subsidiary" under each of the
Credit Agreement and the applicable Future Debt Documents.
(b) The following definitions are amended and restated in their entirety,
as follows:
"Significant Domestic Subsidiary" has the meaning specified in the
Intercreditor Agreement.
2. Section 2.1 of the Security Agreement is hereby amended, as follows
[CHANGES ARE SHOWN IN ITALICS]:
(a) Section 2.1(d) is amended and restated in its entirety as follows:
"(d) All General Intangibles, including without limitation all Program
Agreements (but excluding any Program Contracts), it being understood that
the security interest in Program Agreements granted hereby shall be subject
to the rights of Program Participants under the Program Agreements;"
(b) The second proviso at the end of Section 2.1 (establishing certain
exclusions from "Collateral") is amended to add a new clause (iii) (following
the words "as the case may be", but preceding the period), as follows:
"or (iii) Program Contracts and any investments, advances or similar rights
relating to funds provided by a Debtor, directly or indirectly, to Dealers
in connection with the origination of Program Contracts or Program
Transfers, to the extent not prohibited under the Financing Agreements."
3. Upon the consummation of the Stapled Stock Restructuring in accordance
with the applicable Financing Agreements, the First Amendment and each of the
changes contained therein shall be rescinded and set aside so that such
amendments shall have no further force and effect, provided, however, that the
Security Agreement, as amended by this Second Amendment, shall otherwise remain
in full force and effect according to its terms. The Collateral Agent agrees,
promptly following consummation of the Stapled Stock Restructuring in accordance
with the applicable Financing Agreements, to provide written confirmation
thereof to Debtors, accompanied by such releases, discharges, termination
statements (and, if applicable, the return of any share certificates and stock
powers) and other documents or instruments as reasonably required to release any
Collateral added to the Security Agreement by the First Amendment.
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4. Upon Collateral Agent's delivery of the confirmation and other materials
referred to in paragraph 3 of this Second Amendment:
(a) Schedule A to the Security Agreement shall be amended to add CAC South
Dakota and the information pertaining thereto, as shown on Attachment 1 hereto,
and Schedule B to the Security Agreement shall be amended to add a reference to
CAC South Dakota and the information pertaining thereto, as shown on Attachment
1 hereto;
(b) the replacement Schedule D (Pledged Shares) to the Security Agreement
set forth on Attachment 2 hereto, adding CAC South Dakota and the T&C Subsidiary
and deleting CAC Canada, shall replace in its entirety the existing Schedule D
(Pledged Shares) to the Security Agreement, and Schedule E to the Security
Agreement shall be amended to add a reference to CAC South Dakota and under such
reference, the word "none";
(c) CAC South Dakota shall be considered, and deemed to be, for all
purposes of the Security Agreement, a Debtor under the Security Agreement as
fully as though CAC South Dakota had executed and delivered the Security
Agreement at the time originally executed and delivered by the existing Debtors,
and hereby ratifies and confirms (as of date of the delivery by Collateral Agent
of the confirmation referred to above) its obligations under the Security
Agreement, all in accordance with the terms hereof; and
(d) CAC Reinsurance shall be considered, and deemed to be, solely for
purposes of the stock pledge over all of its shares of stock in the T&C
Subsidiary and CAC South Dakota, granted under Section 2.1(i) and (l) of the
Security Agreement a Debtor under the Security Agreement as fully as though CAC
Reinsurance had executed and delivered the Security Agreement at the time
originally executed and delivered by the existing Debtors, and hereby ratifies
and confirms (as of the date of delivery by the Collateral Agent of the
confirmation referred to above), its obligations under the Security Agreement
(to the extent relating thereto), all in accordance with the terms hereof.
Notwithstanding the foregoing, (x) unless and until the Collateral Agent
delivers the confirmation and other materials referred to in paragraph 3 of this
Second Amendment, CAC South Dakota and CAC Reinsurance shall have no obligations
under the Security Agreement; and (y) the stock pledges over the shares of stock
of the T&C Subsidiary shall be subject to any pledge under local law executed
and delivered by CAC Reinsurance and the Company, if so executed and delivered.
5. Except as expressly modified hereby, all the terms and conditions of the
Security Agreement shall remain in full force and effect. Except as expressly
set forth herein, nothing in this Amendment shall constitute a waiver of any
term or condition of the Security Agreement or any of the rights and remedies
provided to the Secured Party thereunder or as otherwise provided by law.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the day and year first written above.
DEBTORS:
CREDIT ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------
Title: Chief Financial Officer
-------------------------------------
Address for Notices:
Credit Acceptance Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxx Xxxxxx
AUTO FUNDING AMERICA OF NEVADA INC.
CREDIT ACCEPTANCE CORPORATION LIFE INSURANCE
COMPANY
BUYERS VEHICLE PROTECTION PLAN, INC. CAC
LEASING, INC.
VEHICLE REMARKETING SERVICES, INC.
CREDIT ACCEPTANCE CORPORATION OF NEVADA,
INC.
CREDIT ACCEPTANCE CORPORATION OF SOUTH
DAKOTA CAC REINSURANCE LIMITED
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------
Title: Chief Financial Officer
-------------------------------------
Address for Notices:
c/o Credit Acceptance Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxx Xxxxxx
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COLLATERAL AGENT:
COMERICA BANK as Collateral Agent
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------------
Title: Assistant Vice President
--------------------------------------
Address for Notices:
Metropolitan Loans D
One Detroit Center, 6th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No.: 313/000-0000
Telephone No.:313/000-0000
Attention: Xxxxx Xxxxxxx
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